The Freedom of Information Act (FOIA) enacted in 1966 generally
provides that any person has the right to request access to federal agency records
or information.

Soft Crimes Against Democracy
What Ever Happened to Freedom of Information?

-- Ruth Rosen

Disgraceful, shameful, illegal, and yes, dangerous. These are words that come to mind every time the Bush administration makes yet another attempt to consolidate executive power, while wrapping itself in secrecy and deception.

And its officials never stop. In May, Citizens for Responsibility and Ethics in Washington, a nonprofit group, filed a lawsuit seeking information from the White House Office of Administration about an estimated five million e-mail messages that mysteriously vanished from White House computer servers between March 2003 and October 2005. Congress wants to investigate whether these messages contain evidence about the firing of nine United States attorneys who may have refused to use their positions to help Republican candidates or harm Democratic ones.

The administration's first response to yet another scandal was to scrub the Freedom of Information Act (FOIA) request section from the White House Office website. One day it was there; the next day it had disappeared. Then, Bush-appointed lawyers from the Justice Department tried to convince a federal judge that the White House Office of Administration was not subject to scrutiny by the Freedom of Information Act because it wasn't an "agency." The newly labeled non-agency, in fact, had its own FOIA officer and had responded to 65 FOIA requests during the previous 12 months. Its own website had listed it as subject to FOIA requests.

For those who may have forgotten, Congress passed the Freedom of Information Act in 1966 to hold government officials and agencies accountable to public scrutiny. It became our national sunshine law and has allowed us to know something of what our elected officials actually do, rather than what they say they do. Congress expressly excluded classified information from FOIA requests in order to protect national security.

Scorning accountability, the Bush administration quickly figured out how to circumvent the Act. On October 12, 2001, just one month after the 9/11 attacks, Attorney General John Ashcroft took advantage of a traumatized nation to ensure that responses to FOIA requests would be glacially slowed down, if the requests were not simply rejected outright.

Most Americans were unaware of what happened -- and probably still are. If so, I'd like to remind you how quickly democratic transparency vanished after 9/11 and why this most recent contorted rejection of our premier sunshine law is more than a passing matter; why it is, in fact, an essential aspect of this administration's continuing violation of our civil rights and liberties, the checks and balances of our system of government, and, yes, even our Constitution.

On Bended Knee.

Lies and deception intended to expand executive power weren't hard to spot after 9/11, yet they tended to slip beneath the political and media radar screens; nor did you have to be an insider with special access to government officials or classified documents to know what was going on. At the time, I was an editorial writer and columnist for the San Francisco Chronicle. From my little cubicle at the paper, I read a memorandum sent by Attorney General John Ashcroft to all federal agencies. Short and to the point, it basically gave them permission to resist FOIA requests and assured them that the Justice Department would back up their refusals. "When you carefully consider FOIA requests," Ashcroft wrote, "and decide to withhold records, in whole or in part, you can be assured that the Department of Justice will defend your decision unless they lack a sound legal basis or present an unwarranted risk of adverse impact on the ability of other agencies to protect other important records."

He then went on to explain, "Any discretionary decision by your agency to disclose information protected under FOIA should be made only after full and deliberate consideration of the institutional, commercial, and personal privacy interests that could be implicated by disclosure of the information."

And what, I wondered, did such constraints and lack of accountability have to do with finding and prosecuting terrorists? Why the new restrictions? Angered, I wrote an editorial for the Chronicle about the Justice Department's across-the-board attempt to censor freedom of information. ("All of us want to protect our nation from further acts of terrorism. But we must never allow the public's right to know, enshrined in the Freedom of Information Act, to be suppressed for the sake of official convenience.")

Naively and impatiently, I waited for other newspapers to react to such a flagrant attempt to make the administration unaccountable to the public. Not much happened. A handful of media outlets noted Ashcroft's memorandum, but where, I wondered, were the major national newspapers? The answer was: on bended knee, working as stenographers, instead of asking the tough questions. Ashcroft had correctly assessed the historical moment. With the administration launching its Global War on Terror, and the country still reeling from the September 11th attacks, he was able to order agencies to start building a wall of secrecy around the government.

In the wake of 9/11, both pundits and the press seemed to forget that, ever since 1966, the Freedom of Information Act had helped expose all kinds of official acts of skullduggery, many of which violated our laws. They also seemed to forget that all classified documents were already protected from FOIA requests and unavailable to the public. In other words, most agencies had no reason to reject public FOIA requests.

A few people, however, were paying attention. In February 2002, Chairman of the Judiciary Committee Senator Patrick Leahy (D-VT) asked the General Accounting Office (GAO) to evaluate the "implementation of the FOIA." Ashcroft's new rules had reversed former Attorney General Janet Reno's policy, in effect since 1993. "The prior policy," Leahy reminded the GAO, "favored openness in government operation and encouraged a presumption of disclosure of agency records in response to FOIA requests unless the agency reasonably foresaw that disclosure would be harmful to an interest protected by a specific exemption."

And what was the impact of Ashcroft's little-noticed memorandum? Just what you'd expect from a presidency built on secrecy and deception -- given a media then largely ignoring both. The Attorney General's new policy was a success. On August 8, 2007, the Coalition of Journalists for Open Government issued "Still Waiting After All These Years," a damning report that documented the Ashcroft memorandum's impact on FOIA responses. Their analysis revealed that "the number of FOIA requests processed has fallen 20%, the number of FOIA personnel is down 10%, the backlog has tripled and the cost of handling a request is up 79%." During the same years, the Bush administration embarked on a major effort to label ever more government documents classified. They even worked at reclassifying documents that had long before been made public, ensuring that ever less information would be available through FOIA requests. And what material they did send out was often so heavily redacted as to be meaningless.

"Soft Crimes" Enable Violent Ones.

Six years after Ashcroft instituted his policy, some of our legislators have finally begun to address what he accomplished in 2001. In April, 2007, the House of Representatives passed legislation to strengthen and expedite the Freedom of Information Act. On August 3, Senators Pat Leahy, once again chairman of the Judiciary Committee, and John Cornyn (R-TX) successfully shepherded the Open Government Act into law, despite strong opposition from administration outrider Sen. Jon Kyl (R-AZ), who had earlier placed a hold on the bill. Like the House bill, the legislation attempted to make it easier to gain access to government documents.

Will it make a difference? Probably not. The Coalition of Journalists for Open Government views the legislation as too weak and compromised to be effective against such an administration. Steven Aftergood, Director of the Project on Government Secrecy for the Federation of American Scientists notes that the administration might well succeed in claiming that the White House Office of Administration is not an "agency." "It's obnoxious, and it's a gesture of defiance against the norms of open government," Aftergood told the Washington Post. "But it turns out that a White House body can be an agency one day and cease to be the next day, as absurd as it may seem."

It's not only absurd; it's dangerous. This is an administration that believes it has complete authority to ignore the law every time it mentions the supposedly inherent powers of a commander-in-chief presidency or wields the words "executive privilege." Its non-agency claim is but one more example of its arrogant defiance of laws passed by Congress.

Ashcroft's quashing of the FOIA, following on the heels of the Patriot Act, was just the beginning of a long series of efforts to expand executive power. In the name of fighting "the war on terror" and "national security," for instance, Bush issued an executive order on November 1, 2001 that sealed presidential records indefinitely, a clear violation of the 1978 Presidential Records Act in which Congress had ensured the public's right to view presidential records 12 years after a president leaves office.

And what did this have to do with preventing a potential terrorist attack? Absolutely nothing, of course. It just so happened that 12 years had passed since Ronald Reagan left the Oval Office. Many people believed, as I did, that locking down Reagan's papers was an effort to stop journalists and historians from reading documents that might have implicated Papa Bush (then Reagan's vice president) and others -- who, by then, were staffing the younger Bush's administration -- as active participants in the Iran-Contra scandal.

When the White House claimed that its administrative office was not subject to the FOIA, an August 24th editorial in the New York Times -- now more alert to Bush's disregard for the rule of law -- asked, "What exactly does the administration want to hide?" It rightly argued that the "administration's refusal to comply with open-government laws is ultimately more important than any single scandal. The Freedom of Information Act and other right-to-know laws were passed because government transparency is vital to a democracy."

How true. It's taken a long time for our paper of record to realize that "soft" crimes are actually hard assaults against our democracy. The restrictions on FOIA and an executive order to seal presidential records may seem tame when compared to the crimes committed at Abu Ghraib, Haditha, and Guantanamo, not to mention warrantless surveillance, the extraordinary rendition of kidnapped terror suspects to the prisons of regimes that torture, and the imprisonment of so-called enemy combatants.

But don't be lulled into thinking that the act of censoring information, of shielding the American people from knowledge of the most basic workings of their own government, is any less dangerous to democracy than war crimes or acts of torture. In fact, it was the soft crimes of secrecy and deception that enabled the Bush administration's successful campaign to lure our country into war in Iraq -- and so to commit war crimes and acts of torture.

You don't have to be a historian to know that "soft" crimes are what make hard crimes possible. They can also lead to an executive dictatorship and the elimination of our most cherished civil rights and liberties.

Historian and journalist Ruth Rosen, a former columnist for the Los Angeles Times and the San Francisco Chronicle, teaches history and public policy at the University of California, Berkeley, and is a senior fellow at the Longview Institute. A newly updated edition of her book,
The World Split Open: How the Modern Women's Movement Changed America was published in January 2007.